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When inventors ask “Is software patentable?” they usually have either developed or are developing a product that runs or utilizes software, and they want to know if they can protect their invention. For example, it might be a website, a smartphone application, a device or a system that uses software to perform one or more functions.
The question which needs to be answered is can you patent a software related invention. The answer to this question is YES! Menlo Park Patents regularly works with inventors to develop software based patent applications. However, for many clients the how does one protect a software related invention can lead to the wrong answer.
Currently the U.S. patent law does not permit one to specifically claim software. For example a patent that has the following claim would not be allowed.
Claim 1. A software application that performs functions X and Y.
However, if the patent claims a computer system and processes performed by said computer system then that claim could be allowable. The following claims could be patentable with the proper specification:
Claim 1. A computer configured to perform the functions which comprises X, Y, and Z.
Claim 2. A computer-implemented method that comprises the following steps:
- X;
- Y; and
- Z
Claim 3. A computer readable device when used with a computer that instructs said computer to perform steps X and Y and calculate Z.
As one can see while software itself is not patentable, software is patentable if one creates a patent application that presents the invention as a method which improves functionality or performs computing tasks in unconventional way. This illustrates one of the many reasons why working with a knowledgeable patent agent skilled in developing software related applications is important to protect your software inventions.
A skilled patent agent can protect software-related inventions with patents by protecting a computer system that performs specific functions or steps. The resulting application is a computer implemented method, and/or a non-transient memory that configures a computer to do specific functions.
When working with your Patent agent you need to define the functionalities of the software, application, device or system that you want to protect. The patent agent will handle the structure of the application and resulting claim language to address the various rules and patent laws that govern the USPTO. Remember that the patent law and rules are a changing target and a good patent agent will know how to protect software-related inventions as the rules and laws change.
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